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Social Security income shouldn't be considered in restitution orders

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Dealing with an issue of first impression, the Indiana Court of Appeals has ruled that Social Security income must be excluded when considering a defendant’s ability to pay restitution.

The appellate court has held that Social Security proceeds can’t be used to satisfy a civil judgment, but had yet to rule on the issue in a criminal matter. Rebecca Kays was ordered to pay nearly $1,500 to her neighbor following a misdemeanor battery conviction. The amount was based on the neighbor’s hospital bill and the court didn’t adequately consider Kays’ ability to pay. Kays’ counsel had argued that she only received $674 a month in Social Security benefits and was disabled and couldn’t work.

The judges reversed, finding the trial court didn’t do enough to inquire into Kays’ ability to pay. Sua sponte, the appellate court addressed whether 42 U.S.C.A. Section 470(a) precludes the trial court from considering SSI in determining her ability to pay restitution.

The judges looked to the Social Security Administration’s Program Operations Manual System, which says that these benefits aren’t subject to certain situations, including “other legal process,” and turned to other jurisdictions that had ruled on the matter to decide the benefits can’t be considered when ordering restitution.

“This approach comports with the purpose of social security benefits, which is to ‘assure that the recipient’s income is maintained at a level viewed by Congress as the minimum necessary for the subsistence of that individual,’” wrote Judge Melissa May in Rebecca D. Kays v. State of Indiana, No. 42A05-1007-CR-504.

The appellate court ordered the trial court to ignore Kays’ SSI when determining her ability to pay, and also sua sponte asked the lower court to consider whether it needs to recalculate the neighbor’s damages. The neighbor submitted a hospital bill for nearly $1,500, but the court didn’t inquire as to how much the neighbor actually paid out of pocket and how much her insurance may have paid.

The judges believed the reasoning from Stanley v. Walker, 906 N.E.2d 852, 857 (Ind. 2009), should be applied to criminal restitution orders to ensure that victims are compensated only for their actual loses. The lower court should determine whether the evidence submitted at trial included other documentation or testimony regarding the neighbor’s “actual cost” and if so, to recalculate her damages prior to assessing what amount Kays is able to pay, wrote Judge May.

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  4. Oh, and you fail to mention that you deprived the father of far FAR more time than he ever did you, even requiring officers to escort the children back into his care. Please, can you see that you had a huge part in "starting the war?" Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

  5. Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

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